IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20814

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JULIAN BOCANEGRA LUPIAN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CR-240-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Following a bench trial with stipulated facts, Julian Bocanegra Lupian

was convicted for illegal reentry after removal in violation of 8 U.S.C. § 1326. 

He appeals the denial of his motion to dismiss the indictment.

He maintains that the order of removal for his removal proceeding was 

defective—and, thus, his removal was void—because the notice to appear did 

not state a date and time for the removal hearing; he alleges that the invalidity 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2020

Lyle W. Cayce

Clerk

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No. 19-20814

2

of his removal precludes it from being used to support his conviction for illegal

reentry. Also, he asserts that he may attack collaterally his order of removal

pursuant to § 1326(d) because the insufficiency of the notice to appear—which 

invalidated the ensuing removal proceeding—excused him from establishing

administrative exhaustion and deprivation of judicial review and rendered the 

proceeding fundamentally unfair. He concedes that his claims are foreclosed 

by United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), cert. denied,

2020 WL 2515686 (U.S. May 18, 2020) (No.19-6588), and Pierre-Paul v. Barr, 

930 F.3d 684 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 

2020) (No. 19-779), and indicates that he raises the issues to preserve them for 

further review.

The Government agrees that the issues are foreclosed by Pedroza-Rocha

and Pierre-Paul and has filed an unopposed motion for summary affirmance. 

Alternatively, the Government requests an extension of time to file a brief.

Summary affirmance is appropriate if “the position of one of the parties 

is clearly right as a matter of law so that there can be no substantial question 

as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 

1162 (5th Cir. 1969). In Pierre-Paul, this court determined that a notice to 

appear that omits the date, time, or place of a removal hearing is not defective 

and, in any event, the defect would not be jurisdictional. 930 F.3d at 689-93. 

Applying Pierre-Paul, this court in Pedroza-Rocha concluded that the notice to 

appear was not deficient, that the purported deficiency would not deprive the 

immigration court of jurisdiction, and that the defendant had to exhaust his 

administrative remedies before he could collaterally attack his removal order. 

933 F.3d at 496-98. Accordingly, the arguments that Bocanegra Lupian raises

on appeal are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 

930 F.3d at 689-93.

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Thus, the Government’s motion for summary affirmance is GRANTED. 

The Government’s alternative motion for an extension of time to file a brief is 

DENIED. The judgment of the district court is AFFIRMED.

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